9.3 Copyright and Fair Use in Journalism
3 min read•july 30, 2024
Copyright and fair use are crucial concepts in journalism. They protect creators' rights while allowing limited use of content for reporting and commentary. Journalists must navigate these laws carefully, especially in the digital age.
Understanding fair use is essential for ethical reporting. Courts consider four factors: purpose, nature of work, amount used, and market impact. Balancing public interest with intellectual property rights is an ongoing challenge in modern journalism.
Copyright basics for journalism
Fundamentals of copyright protection
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- Copyright grants creators exclusive rights to original works for a specified period
- Applies to various journalistic content (articles, photographs, videos, audio recordings)
- Copyright Act of 1976 provides federal guidelines for protection, duration, and exceptions
- Protection activates automatically upon creation and fixation in tangible form
- Registration with U.S. Copyright Office offers additional benefits (legal standing in infringement cases, )
Ownership and challenges in journalism
- "Work for hire" doctrine determines copyright ownership for content created during employment
- Journalists must navigate both their own copyright protections and others' rights when using content
- Digital journalism introduces new copyright challenges:
- Content aggregation (collecting and republishing snippets from multiple sources)
- Social media sharing (reposting copyrighted material on platforms)
- Online republication (republishing print content on websites without proper permissions)
Fair use and its factors
Understanding fair use
- Fair use allows limited use of copyrighted material without permission for specific purposes:
- Criticism
- Commentary
- News reporting
- Teaching
- Scholarship
- Research
- Courts weigh all factors together in case-by-case analysis
- No single factor determines fair use outcome
Four factors of fair use
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- Considers if use is commercial or nonprofit educational
- Evaluates transformative nature (adding new meaning or purpose)
- Nature of copyrighted work
- Distinguishes between factual (news articles) and creative works (novels)
- Factual works receive less protection, easier to claim fair use
- of portion used
- Examines quantity and quality of material used
- Using "heart" of work may weigh against fair use, even if small portion
- Effect on potential market or value
- Assesses impact on current and future markets for copyrighted work
- Considers if use serves as substitute for original
Fair use case studies
Landmark fair use cases
- (1994)
- Involved 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman"
- Established importance of in fair use analysis
- Authors Guild v. Google, Inc. (2015)
- Addressed Google's book scanning project
- Upheld fair use for creation of searchable database of books
Applying fair use factors
- Transformative nature carries significant weight in modern analysis
- Adding new purpose, meaning, or message to original work
- Example: Using news footage in documentary critique of media coverage
- Quantitative and qualitative assessments crucial
- Using small portion may still infringe if it's the "heart" of the work
- Example: Quoting key passages from unpublished manuscript
- Market impact evaluation considers current and potential future markets
- Example: Reproducing entire news articles may harm subscription-based news sites
Ethics of copyright in journalism
Balancing public interest and intellectual property rights
- Journalists must inform public while respecting creators' rights
- and proper crediting essential, even under fair use
- Moral rights concept raises questions about integrity and attribution
- Example: Altering photographs without permission or acknowledgment
Digital age challenges
- Ease of copying and distributing content without permission
- Example: Sharing entire articles on social media platforms
- Maintaining in use and sourcing of copyrighted material
- Disclosing when content is used under fair use claims
- Considering impact on sources and subjects when using copyrighted material
- Example: Using personal photos from social media in news stories
Key Terms to Review (18)
American Society of Journalists and Authors: The American Society of Journalists and Authors (ASJA) is a professional association that supports freelance writers and authors by advocating for their rights, offering resources, and promoting ethical journalism practices. This organization is essential for protecting the interests of writers, particularly in the realm of copyright and fair use, as it provides members with access to important information on legal issues affecting their work and guidance on best practices in the industry.
Amount and substantiality: Amount and substantiality refers to the two key factors considered when determining fair use in copyright law, particularly in journalism. Amount refers to the quantity of the original work that is used, while substantiality addresses the significance or value of that portion in relation to the whole work. Both factors are weighed together to assess whether the use falls under the protection of fair use, allowing journalists to use copyrighted materials without permission under certain circumstances.
Attribution: Attribution refers to the practice of identifying and crediting the sources of information in journalism, which is crucial for maintaining credibility and transparency. It ensures that readers understand where the information comes from, allowing them to evaluate its reliability. Proper attribution not only protects journalists from plagiarism but also honors the original source of the content, reinforcing ethical standards in reporting.
Campbell v. Acuff-Rose Music, Inc.: Campbell v. Acuff-Rose Music, Inc. is a landmark U.S. Supreme Court case from 1994 that addressed the issue of fair use in copyright law, particularly concerning the use of a copyrighted song in a parody. The court's decision clarified that a transformative use of a copyrighted work, such as parody, can qualify for fair use, emphasizing the importance of context and purpose in determining fair use claims.
Copyright Alliance: Copyright Alliance is a non-profit organization that advocates for the rights of creators and promotes the importance of copyright in protecting intellectual property. By supporting creators and addressing copyright issues, the Copyright Alliance plays a crucial role in ensuring fair compensation and recognition for artists, writers, and other content producers.
Copyright infringement: Copyright infringement occurs when someone uses, reproduces, or distributes a copyrighted work without the permission of the copyright holder. This violation can take place in various forms, including copying text, images, or music without consent. Understanding copyright infringement is crucial for creators and journalists to protect their own work while respecting the rights of others, especially in environments where information is rapidly shared, such as social media.
Fair use doctrine: The fair use doctrine is a legal principle that allows limited use of copyrighted material without needing permission from the copyright owner. It plays a crucial role in journalism by balancing the rights of creators with the public's interest in accessing and using information. This doctrine is particularly important in news reporting, commentary, criticism, and education, as it enables journalists to incorporate portions of copyrighted works for transformative purposes.
Harper & Row v. Nation Enterprises: Harper & Row v. Nation Enterprises is a landmark Supreme Court case from 1985 that addressed the limits of fair use in copyright law, specifically concerning the unauthorized use of excerpts from a copyrighted work. The case involved Harper & Row's publication of President Gerald Ford's memoirs and Nation Enterprises' publication of excerpts without permission. This ruling emphasized the importance of protecting authors' rights while balancing the need for free expression and the public interest in accessing information.
Injunctive Relief: Injunctive relief is a legal remedy that a court can order to prevent a party from continuing to engage in certain actions or to compel them to take specific actions. This type of relief is often sought in cases where monetary damages would not adequately address the harm caused, especially in matters of copyright infringement and fair use. It serves to protect the rights of individuals and organizations by ensuring that their interests are safeguarded against ongoing or imminent harm.
Licensing agreements: Licensing agreements are legal contracts that allow one party to use the intellectual property of another party under specific conditions. These agreements are crucial in the realm of copyright and fair use, as they define how copyrighted materials can be utilized by journalists and other media professionals while respecting the rights of the original creators. Through licensing, copyright holders can control the distribution and use of their works, ensuring that they receive proper compensation and attribution.
Literary works: Literary works refer to creations that express ideas, stories, or artistic expressions through written or spoken language. They encompass a wide variety of forms including novels, poems, plays, essays, and articles. In the context of copyright and fair use, literary works are crucial as they are protected by intellectual property laws, granting authors certain rights while also establishing limits on how these works can be used by others.
Non-commercial use: Non-commercial use refers to the use of copyrighted materials without the intent to make a profit. This type of use often allows for educational, personal, or charitable purposes where financial gain is not the primary goal. Understanding this term is crucial for journalists, as it plays a significant role in determining what constitutes fair use under copyright law, especially in the context of reporting and disseminating information.
Public domain: Public domain refers to creative works and intellectual property that are not protected by copyright and are therefore available for use by anyone without the need for permission or payment. Works enter the public domain after the expiration of copyright protection, meaning that they can be freely used, reproduced, and modified by the public. This concept plays a crucial role in journalism and media, as it allows journalists to access a wealth of information and cultural resources without legal restrictions.
Purpose and Character of Use: Purpose and character of use refers to the evaluation of how a work is utilized, especially in the context of copyright law. This concept plays a critical role in determining whether the use of a copyrighted material qualifies as fair use, focusing on whether the use is commercial or educational, transformative, and whether it adds new meaning or value to the original work.
Sound recordings: Sound recordings are fixed audio expressions of sounds, which can include music, speech, or other audible elements captured through various technologies. They play a significant role in journalism by enhancing storytelling, providing evidence, and offering a deeper emotional connection to the audience, while also raising important issues related to copyright and fair use.
Statutory damages: Statutory damages are predetermined amounts of money that a copyright owner can claim in a lawsuit for infringement, regardless of the actual harm caused. This legal remedy serves to simplify the process for proving damages in copyright cases, providing a financial deterrent against unauthorized use of copyrighted material. Statutory damages are often applied in situations where the infringer's actions were willful or where it is difficult to quantify actual losses.
Transformative use: Transformative use refers to the legal doctrine that allows individuals to use copyrighted material in a way that adds new expression, meaning, or message, thereby altering the original work. This concept is crucial in determining whether a particular use of copyrighted content qualifies as fair use, particularly in journalism and creative fields. Transformative use emphasizes the extent to which the new work differs from the original, focusing on how it changes or enhances the original material's purpose.
Transparency: Transparency in journalism refers to the practice of being open and clear about the sources of information, methods used in reporting, and potential biases that may affect the content. This principle helps build trust with audiences by ensuring that they understand how news is gathered and presented, fostering a more informed public.